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Professionalism News: California Rules Redo Marries Borrowed Rules With Old and New

Posted By Sara Brylowski, Wednesday, July 20, 2016

From ABA BNA Lawyers' Manual on Professional Conduct™ (also available on Bloomberg Law)

 

By Joan C. Rogers

July 11 — The California State Bar is seeking feedback by Sept. 27 on a big set of proposed revisions to the rules governing lawyer conduct in the Golden State.

The bar's board of governors June 23 agreed to float 68 proposed new and amended California Professional Conduct Rules for a 90-day public comment period.

The proposed rules mostly track the numbering of the Model Rules and borrow some of the substance of the ABA models, but rework or add to several rules and preserve some of California's current rules, including its strict confidentiality standards.

Some highlights of the package are:

  • A hybrid general standard for conflicts of interest;
  • Restrictions on nonrefundable fees and flat fees;
  • A narrow screening rule;
  • A unique rule on representing clients with diminished capacity;
  • Two alternatives for an updated bias rule;
  • Streamlined advertising and solicitation rules; and
  • A flat ban against sex with current clients.

The proposals leave out Model Rule 1.18 (duties to prospective clients), Model Rule 8.3 (reporting misconduct) and a half-dozen other ABA models. ( See box).

The process of shifting to a version of the Model Rules in California is on a fast track—but far from complete. The commission said it will seek additional comment for any revisions to these drafts before sending final proposals to the bar's board of governors for possible approval. Even when the board has approved a final set of rules, none of them will go into effect unless and until the California Supreme Court accepts them.

PUBLIC HEARING

There will be a public hearing July 26 on the proposed rules at the state bar's Los Angeles office, with a remote link enabling people to testify from the bar's San Francisco office. The time limit for registering to speak is July 20.

Heather L. Rosing, who's with Klinedinst in San Diego, told Bloomberg BNA that some of the proposals likely to provoke the most discussion are the draft rules on prohibited discrimination, harassment, and retaliation; client trust accounting... [read more]

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